Arizona Entrapment Laws – When Is It a Defense to a Crime?

In Arizona, entrapment is a legal defense for when law enforcement initiates the idea to commit a crime, and then induces the defendant into committing it. If the defendant was not predisposed to commit the offense, it can be entrapment. Defendants have to admit to the crime in order to raise the defense, however.

1. What is entrapment in Arizona?

Entrapment is a legal defense in Arizona. It is set out in ARS 13-206. The defendant has the burden of proving that they were entrapped. They do this by showing all of the following:

1. law enforcement officers or their agents initiated the idea of committing the offense,
2. they then induced the defendant into committing the crime, and
3. the defendant was not predisposed to commit the crime before they were urged and induced to do so.¹

A criminal defense lawyer can use the conduct of law enforcement agents during the criminal investigation to prove entrapment.² However, it is not entrapment for police or their agents to use a ruse to gather evidence of a crime or to go undercover or to conceal their identity.³

Unlike other legal defenses under state criminal law, to raise an entrapment defense, the defendant has to admit to the elements of the criminal offense they are being accused of committing.⁴

Entrapment is a common defense to criminal cases involving:

• selling or possessing dangerous drugs,
• contributing to the delinquency of a minor,
• luring a minor,
• prostitution, and
• sexual exploitation of a minor.

2. What does it mean to induce someone into committing a crime?

Under Arizona law, police officers are not allowed to induce, force, or coerce someone into committing a criminal act. While they can provide the opportunity for someone to commit the crime, they cannot use undue persuasion or push the defendant into doing something that he or she does not want to do.⁵

For example: There was no inducement when the defendant offered to sell marijuana if anyone had the money to buy it. The undercover police officer gave the defendant money to buy marijuana. When the defendant used the money to buy the drugs and then gave them to the officer, he was arrested.⁶

3. What is a predisposal to commit the crime?

To prove entrapment, the defendant has to show that he or she was not predisposed, or inclined or interested, in committing the crime. Evidence that the defendant was eager to commit the crime will undermine an entrapment defense. Evidence that the defendant was reluctant, unwilling, or hesitant to go through with the crime is essential.⁷

The defendant’s predisposition to commit the criminal conduct can go hand-in-hand with the first element of the entrapment defense; the origin of the idea to commit the crime. To prove entrapment, the defendant has to show that law enforcement came up with the idea. If the defendant initiates the criminal enterprise, then it would also show a strong predisposition or inclination to commit it, as well.

For example: Undercover police recruit people for a fake robbery attempt. The defendant said that he was “in,” that he had a shotgun that he could use, that he had done other home invasions, before, and asked for more guns. When he was arrested and charged, the court found that the defendant had a predisposition to commit the crime.⁸

4. Who has the burden of proof?

Under ARS 13-206, entrapment is an affirmative defense in Arizona. This means that the defendant has the burden of proving that he or she was entrapped. The defense must prove it by clear and convincing evidence.⁹

This standard of proof is higher than a preponderance of the evidence, but lower than beyond a reasonable doubt.

If the standard of proof is met, then there will be a jury instruction for the jury to consider at trial.

A criminal defense attorney from a local law firm or law office can help to meet this standard of proof.

5. Does the defendant have to admit to the crime to raise it?

Yes, defendants facing state criminal charges in Arizona superior courts or trial courts have to admit to the substantial elements of the crime in order to raise an entrapment defense.¹⁰

This admission has to be active, not passive. The defendant has to affirmatively present evidence to the jury that signals that they have admitted or confessed to the elements of the crime. This often requires them testifying during trial or having their confession read in court. They cannot merely remain silent or leave the prosecutor’s case uncontested.¹¹

This means that defendants raising a defense of entrapment are often unable to raise other legal defenses, like:

• self-defense,
• defense of property,
• defense of a third person,
• lack of knowledge,
• mistake of fact,
• insanity, or

However, if the defendant is facing federal charges in one of the federal courts in Arizona, he or she does not have to admit to the crime to claim entrapment.¹²

According to the Arizona Supreme Court, the difference between the Arizona and the federal entrapment defenses come from:

• the wording of ARS 13-206, which requires the defendant’s admission,
• the potential perjury of a defendant claiming both that he or she did not commit the crime, but also that they were entrapped into committing it, and
• the confusion of the jury hearing inconsistent defenses.¹³

6. What about the right against compelled self-incrimination?

The Arizona Supreme Court has said that, while harsh, Arizona’s entrapment defense does not violate a defendant’s constitutional rights against compelled self-incrimination by requiring admission of the crime.¹⁴

The Fifth Amendment to the United States Constitution protects criminal defendants from being forced to provide evidence against themselves.

In Arizona, the Supreme Court has said that, because entrapment is an affirmative defense, defendants are not compelled into self-incrimination. They merely have to choose whether to raise the defense or not. If they want to claim entrapment, then they have to admit to the offense. But they are not being compelled to admit to the crime because they have an alternative: Not raising the entrapment defense.¹⁵

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